MEMORIES. OR ARE THEY?
COURTS TRY TO WEIGH SHARPLY CONFLICTING STORIES FROM SIBLINGS
The way Agnes Whitfield, 65, used to remember it, her c hi l dhood on a dairy farm near Peterborough, Ont., was pleasant if not idyllic. She was the baby in a large family, and when she cast her mind back to her earliest memory, she remembered a litter of kittens being born on a cot she sometimes napped on in her parents’ room.
Her mother Alta was a former teacher and a disciplinarian. Her father Stanley, who ran the farm, was older, with a lingering limp from polio. Together, they raised four children who went on to successful lives: Joan became a pediatrician, Margaret a psychiatrist, Bryan a college math teacher and Agnes found a love of French literature, which led to graduate work in Paris and Laval, a nomination for a Governor General’s Award and a career as an English professor at Queen’s and then York University.
But Agnes’s memory is not what it used to be. Through a controversial, self- guided process of repressed memory recovery, prompted by a bitter dispute with her siblings over the family cottage, she claims to remember Bryan torturing and raping her throughout her childhood until she was 20, abetted at times by Margaret, without ever arousing the attention of Joan or their longtime live-in nanny.
Two years ago, despite denials from all three siblings, no corroborating evidence and no criminal charges, Agnes convinced an Ontario Superior Court judge to grant her almost half a million dollars from Bryan, a ruinous amount in his retirement. She had no lawyer, and even cross-examined her own siblings in a trial she insisted on conducting in French to emotionally shield herself. Judge John McIsaac f ound her performance “masterful.”
Neither agreed to be interviewed for this story. As a cautionary tale in the legal use of recovered memories, their story seems a quartercentury out of date, as if it belongs back in the era when repressed memories of child sex abuse, recovered by adults in therapy, formed the basis of prosecutions and lawsuits to faddish proportions.
Skepticism grew in the years since, as many of those cases failed. The Supreme Court last addressed the concept in 1994.
“You just don’t see it as much anymore. You don’t see prosecutions brought solely on the basis of supposedly recovered memories,” said Matthew Gourlay, Bryan’s lawyer. “This case was unusual because it was a private lawsuit; you didn’t need the police or Crown to sign off on it.” Cassis, France, marks the western terminus of the French Riviera. When Agnes arrived there in the late summer of 2001, she was in a bad place with her family back in Toronto, estranged from her three grown daughters, and divorced from their father, Stan Kirschbaum.
Agnes and Stan fell in love at Queen’s in the 1970s, when she was an undergrad and he a young professor, and eventually both became professors at York’s francophone Glendon College. She left him in 1997, on the day of her mother’s funeral, moving to Montreal with Daniel Gagnon, an artist and writer, with whom she had fallen in love. The divorce grew ever uglier, as Agnes contacted media outlets to urge them to report on Stan’s father’s alleged Nazi ties in Czechoslovakia.
She was also feuding with her siblings over the family cottage near Buckhorn, Ont., in the Kawartha Lakes. She wanted to keep it, but they forced her to sell. This coincided with her first experience of recovered memory, in a flashback that prompted her to send a note to her siblings, accusing Bryan of raping her, prostituting her and nearly killing her.
“Bryan, I accuse you by this letter, of the premeditated attempted murder of a little girl I carry inside me,” she wrote, just before leaving for France. Her daughter Olga wrote to Bryan soon after: “Mom is not well and unfortunately this is not the first of this kind of accusation that she has made.”
Bryan replied to Agnes with a note of comfort and concern, saying her behaviour was “strange and worrisome.” The next day, Agnes reported her memories to police. They suggested she keep a diary.
In Cassis with Daniel Gagnon a few days later, the floodgates of her memory opened. She felt intense fear and rage, and strange bodily sensations. Words were “popping out” of her mind unbidden, and she would see “fragmented visual images” that felt like “pieces of dreams.”
“My memories continue to emerge here in Cassis. The peace of the place lends itself to this process of drawing the painful events in my life out of the forgotten past and into the light,” she wrote in an email to her daughters and nieces, asking if they were also abused, as she suspected.
In another, she described swimming in the Mediterranean with Gagnon, when a ray of light broke through the clouds. “I had the impression that I was resurfacing from the depths of the sea, that I was returning to the realm of the living. I don’t know how many times nearly drowned me.”
Curiously, her new partner Gagnon had the same experience of recovering memories of child sex abuse by his father, just a few days after Agnes. He later filed a police complaint and legal action that has also estranged him from his family.
At trial, more than a decade later in 2012, Bryan’s counsel argued this was evidence of a “shared psychotic disorder,” more artfully known in French as a “folie à deux.” Judge McIsaac decided it was a “simple coincidence.”
In his 2014 ruling, Judge McIsaac described Agnes’s memories of abuse as a “marathon” lasting 15 years, from age five until she was 20 and dating her future husband.
“As she stated very poignantly during the course of the examination- in- chief: “On a good day, it was only fellatio; on a bad day he would sodomize me,” he wrote.
The details are beyond outrageous. Bryan would force her head into the toilet and threaten to make her drink. He put a gun barrel in her mouth, said her parents never wanted her, that she was a “mistake.” He locked her in the dairy farm’s cold room, pushed her into a gravel pit, tried to burn her with machinery, killed her baby rabbits by throwing them against a wall. In the barn, he put a rope around her neck and through a pulley as she stood on a hay bale, as if to hang her.
She testified Bryan and Margaret once put her head in a feed bucket, and Joan saved her from suffocating. Joan, to whom Agnes was closest before these allegations caused a deep estrangement, testified she had no memory of this.
One summer, when Agnes was in university and staying with Bryan and his friend at a cottage, she claimed they urinated on her, forced her to eat her feces, and locked her overnight in an abandoned mine shaft, telling her the roof would collapse if she moved.
On a trip to British Columbia soon after, she claimed Bryan sold drugs and prostituted her to partiers on Long Beach near Tofino, and also to a gang of construction workers in Vancouver. On cross- examination, she acknowledged she did not specifically remember being gang-raped around a fire, as she earlier testified, but she had an “impression” of it.
“They are not false memories,” the judge decided.
The summer after the memories resurfaced, Sarah Maddocks, a Toronto psychologist hired as part of Agnes’s lawsuit against Bryan, had been interviewing Agnes for a few hours when she asked about her strange lack of emotional range, given the intensity of the subject.
Agnes said s he had “trouble getting into anger,” and as she spoke, she seemed to have a “switch of consciousness.” She started to rock on the couch, eyes glazed, darting but not focused, pouting, her j aw seeming to spasm, choking on her own breath.
“I’m really angry you did nothing!” Agnes shouted. To whom was unclear. Three minutes later, she was calm again.
For Maddocks, who diagnosed post- traumatic stress disorder, agoraphobia and a personality disorder, Agnes’s illness was effectively taken as proof of its own cause. Her mental anguish “provides significant support” for the truth of her claims, she wrote.
There were reasons to be skeptical, and Maddocks was. Agnes was a “vague historian” and scored high on a deception scale, Maddocks observed. She was overly descriptive, but confused on chronology and insisted on telling things her way, resisting questions. She seemed “emotionally numb” and poorly attuned to her emotional state. Asked about the abuse memories, she became distressed, vague, evasive, and less sophisticated in her language. Her relationship with Gagnon was “abnormally co- dependent and isolating,” Maddocks found.
In short, Agnes was deeply maladjusted, and probably in significant distress, but trying to hold it together.
Judge McIsaac shared the skepticism, but not enough to let it win the day. For example, he did not hold it against Agnes’s credibility that she refused to be examined by a defence psychiatrist.
So Judge McIsaac was faced with a dilemma. He believed Agnes’s claims and Bryan’s denials equally. Maddocks tipped the scales. This was a colossal legal error, a misuse of expert testimony. Judge McIsaac had fallen for what the Ontario Court of Appeal called the “allure of scientific infallibility.”
In his defence, Bryan submitted old letters from Agnes, full of domestic details, and how much she likes him and misses him. They are polite and articulate. He is her “favourite brother,” and she his “adoring fan.”
For Bryan’s counsel, this was a controversial appeal to the idea that real victims are unlikely to show such affection for their abusers. But this had little effect on the outcome.
Ordered to pay his sister nearly $ 500,000, Bryan appealed. He hired Marie Henein, the Toronto lawyer who has played her own famous role in revealing the legal perils of frail memory in sexual- abuse complainants, as counsel to Jian Ghomeshi. With co- counsel Matthew Gourlay and Christine Mainville, Henein took apart Agnes’s recollections, and recently convinced the Ontario Court of Appeal to reverse the ruling, grant a defamation claim against Agnes, and make an example of the trial judge for letting a hired expert “usurp his role as trier of fact.”
This fall, Agnes was saddled with costs and damages to Bryan of almost $180,000. She has not paid. Instead, she hired lawyers to pursue a Supreme Court appeal.
Memories, science suggests, are not like books in a library or files in a computer, waiting to be opened anew, exactly as they were stored. Rather, they are stored in many “traces” throughout the brain, and remembering is the process of gathering these traces together, which itself creates new traces. The point is that remembering happens a slightly different way each time.
Memories are st r ung together like necklaces from beads stored loosely in a jar, according to one scientific metaphor. For the courts, the trouble is that these strings can be weak and when they break, the results are chaotic — like loose beads falling to the floor.